Military lawyers should handle sexual assault cases

In a recent Senate Armed Services Committee hearing, lawmakers demanded answers from top uniformed leaders about whether a drastic overhaul of the military justice system is needed. Military lawyers should handle sexual assault prosecutions.

Photo By Courtesy

Roger A. Canaff is a former special victims prosecutor and former U.S. Army highly qualified expert, or HQE.

Recent Headlines

Recent efforts to remove the decision-making process from commanders where serious sexual assaults are concerned are controversial but ultimately well advised. The issue is not the quality of the prosecutors or investigators; I was a civilian consultant in the U.S. Army JAG Corps for almost three years, and encountered largely dedicated and well-trained men and women who wanted justice for victims.

But I also found a continuing blind spot that makes sexual violence impossible to adequately address under current military justice practice. In simplest terms, our military as a whole faces a perfect storm of a small but prolific percentage of predators in its midst colliding with an especially vulnerable population. Combined with the dynamics often associated with both, the approach to making the military safe within the ranks must evolve to recognize and meet this threat. Contrary to what many assume, most sexual violence is perpetrated in serial fashion by predatory men known to their victims. Most do not appear as criminals and in fact are often successful and respected in their environments. They often seek “soft targets” that either won't report or won't be believed, and an environment that will provide them relative security.

Predators are not created by environments; they are drawn to them. Respected, values-based institutions are attractive to predators who pervert those ideals and use them to exploit trust and weaken victims. Sadly, military values like self-sacrifice, honor, duty and loyalty, characteristics taken seriously by the great majority, are manipulated by a dangerous few. Exacerbating the draw are combat training, access to weapons, and an instant recognition of power relationships due to rank.

The great majority of service men and women are not predatory; quite the opposite is true. But even a small percentage in an institutional environment can create tremendous damage. On the other side, a large percentage of enlistee females report sexual abuse prior to enlistment. Sadly, this prior victimization puts them statistically at a higher risk to be re-victimized. Their experiences may also lead to other behaviors that predators view as attractive; many are neither well-adjusted to military life nor highly valued by the command.

Worse, reactions to sexual assault in any given case are often counter-intuitive and misunderstood. Enter a commander considering sexual assault charges and perceiving an accused who is valuable and well-liked against a complainant who is a liability to unit cohesion and function. Combined with myths about sexual violence and deeply complex dynamics, valid cases are too often stopped in their tracks. In this way, predators continue to offend and victims continue to suffer without recourse, eventually weakening the entire military structure. Of course, victims can be and often are successful and well-adjusted to military life. But they similarly suffer blame for everything from “inviting” the attack to simply creating conflict within the unit.

Without a doubt, the civilian world is no different in terms of its struggle to understand and confront the issue of sexual violence. Improvement is needed everywhere, and victims suffer unfairly in all areas of life. But the military involves unique and inherent risks, conflicts, and disadvantages for sexual violence victims. Military commanders are the appropriate arbiters where most matters of discipline and good order are concerned. But rape is a crime like no other.

Lawyers still in uniform, but specially trained and unburdened by command concerns, are in a better position to pursue justice and make our military healthier and more efficient. Our loved ones, our family members, our defenders, deserve no less.

Roger A. Canaff is a former special victims prosecutor and former U.S. Army highly qualified expert, or HQE.